Effective Assistance - Tactical Dispute

Anthony Regnier was charged with assault with a weapon, to wit, his dog. During police attendance he had allegedly “sicced” his dog on the police. He was convicted after trial. He was sentenced to 90 days jail and 12 months probation.

Regnier appealed. He alleged ineffective assistance of counsel and his sentence was unfit. His appeal was dismissed: 2017 SKCA 83.

The Court of Appeal outlined the background to this complaint as follows:

Taking these appeals in turn, Mr. Regnier’s notice of appeal against conviction alleges “defence lawyer conflict” and that his “defence was not properly heard.” Particularising these allegations in the hearing before us, Mr. Regnier said he had wanted his trial counsel to call two witnesses to corroborate his own testimony to the effect that he had not “sicced” his dogs on a police officer, which had given rise to the assault with a weapon charge. He says his trial counsel persuaded him to believe the Crown’s case was weak and, therefore, he reluctantly agreed not to adduce further evidence. The fact a discussion of this general sort occurred between Mr. Regnier and his trial counsel, although not its detail, is borne out by the transcript of trial. [Para 2].

To succeed, Regnier would have to “first establish that his trial counsel’s advice not to call the two witnesses in question constituted incompetence and, second, that a miscarriage of justice resulted”: see for example R v GDB, 2000 SCC 22.

The court noted further that it is important for a reviewing court to start with the “strong presumption” of counsel competence.   

An appellant must establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. In assessing that conduct, “the wisdom of hindsight” has no role to play—that is, the adverse result of a trial strategy or decision does not of itself diminish the reasonableness of the strategy or decision when it was made or taken. [Para 5].

Turning to apply this law, the court noted there was:

...nothing in the court record that, on its face, suggests Mr. Regnier’s trial counsel acted incompetently. There are many reasons why an accused might decide to call or not call a witness. In this case, we are not privy to the details of the discussion between Mr. Regnier and his trial counsel in that regard—or, indeed, to what the two witnesses in question might or might not have said had they been called. We only have what Mr. Regnier says occurred because his trial counsel was not notified of this allegation of ineffective representation and Mr. Regnier has not waived his solicitor-client privilege, which would have allowed his trial counsel to defend against it. In short, the evidence falls far, far short of displacing the presumption of trial counsel competence. [Para 6].

The court further noted, for sake of completeness no doubt, that there was no apparent miscarriage of justice.

With respect to the 90 day sentence, it was not demonstrably unfit and no error of law or principle was occasioned by the sentencing judge. Appeal dismissed.

Regnier is a welcome decision reinforcing the presumption of competence and limiting success on appeal alleging incompetence when the true request is to permit another trial with a different tactical approach.

DM

Holding back the hands of Jordan

John Baron was charged with 28 counts of fraud. He was convicted and sentenced to 6 years jail. Prior to trial Baron brought an application to stay the proceedings based on a violation of s11(b), unreasonable delay. The trial judge dismissed the application. Baron appealed. His appeal was dismissed: 2017 ONCA 772.

Baron was charged with two others, McGill and Houle. In all 59.5 months passed before the conclusion of their trial. The trial judge found no waiver nor any delay attributable to the Crown. The total institutional delay was 18.5 months (8 months in OCJ and 10.5 months in SCJ). The remainder, bulk of the delay, was almost entirely neutral time under Morin – 6 months was attributed to defence delay.

In reviewing the ruling and impugned delay the Court of Appeal agreed with the trial judge that there was no violation of s11(b). A few points are particularly notable.

First, the court agreed that time arising from the removal of counsel was attributable to defence delay. The court further did not entirely reject the position of the Crown that the delay from the removal of counsel to the start of the second dates for the preliminary inquiry should be defence delay – a position which might in other circumstances be accepted. The court explained:

I would allocate the entire time between the date set for the start of the first preliminary inquiry (August 2, 2011) and the date set for the commencement of the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel’s removal (April 13, 2011) until the second preliminary inquiry (February 13, 2012), namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6 ½ months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors. [@48].

Second, delay occasioned by the co-accused was treated as neutral by the applicaton judge under the transitional exception and thus justified delay beyond the ceiling. The Court of Appeal agreed:

Operating within the Morin framework, the application judge was correct to treat the delay caused by the co-accused as neutral time: see Whylie, at para. 24; and L.G., at paras. 62-63. He also recognized the importance in trying co-accused together, a principle that was recently endorsed by this court in R. v. Zvolensky, 2017 ONCA 273 (CanLII), 135 O.R. (3d) 401, per Watt J.A., at paras. 245-255.

This case is not like R. v. Vassell, 2016 SCC 26 (CanLII), [2016] 1 S.C.R. 625, in which Mr. Vassell’s persistent and proactive efforts to have a trial as soon as possible were thwarted by the delay caused by his six co-accused.

Here, the appellant was content with the pace of the proceedings, never raising the issue of severance. Severance was not appropriate in any event, given the complexity of the case, the nature of the allegations, and the evidence common to all three accused. [@62-64].

Third, on the issue of complexity the Court of Appeal rejected the notion that because the trial only took 8 days it was not complex – this approach to complexity is mistaken and has been rejected:

In gauging the complexity of the case, it is an error to focus exclusively on the end product – the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para. 62:

A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

[@71].

Fourth, the court noted that the transitional exception was created to avoid the very result sought by Baron – a stay relying on a new regime where the parties were proceeding reasonably under the law that existed before Jordan. In support the Court of Appeal cited the following passage from Pyrek, 2017 ONCA 476 @32:

Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was [not] caused by… "repeated mistakes or missteps".

Baron is another case in a recent string of cases where the Court of Appeal has rejected s11(b) claims in transitional cases. It is a welcome and principled approach to Jordan.

DM

Public Interest is Not Dead

Kim Madsen was convicted of aggravated assault. He was sentenced to 40 months in jail. He appealed. He sought bail pending appeal. That request was denied: 2017 SKCA 73.

The Court of Appeal first considered whether the appeal was “frivolous” pursuant to s679(3)(a). It noted that the test represents a “very low bar”: see R v Oland, 2017 SCC 17; and R v Gill, 2015 SKCA 96 @para 15. Noting the grounds of appeal, the court concluded that the appeal was not frivolous – but, notably the court held that the merits of the appeal could also be considered under public interest:

While there may be some merit to the Crown’s position with respect to this criterion, I note the trial judge gave very serious consideration to Mr. Madsen’s defence. His oral decision encompasses some 150 transcript pages where he extensively reviews the evidence in support of Mr. Madsen’s claim to self-defence and his claim that he was not the cause of Mr. Peepeetch’s paralysis. Having regard for the seriousness with which the trial judge gave to Mr. Madsen’s defence, I am not prepared to say that the grounds of appeal from conviction are baseless, as the Crown suggests. I am, however, entitled to consider the strength of the grounds of appeal as presently put to me as part of my assessment of the public interest criterion. [Para 8].

Turning to the public interest ground pursuant to s679(3)(c), the court reflected on Oland and noted the following [see para 10 and 12]:

• Not every application for bail engages public confidence: Oland @para 29
• The more serious the crime the more public confidence will be undermined if the accused is released pending appeal: Oland @para 37
• There must be a balancing of the relevant factors including the strength of the appeal and the seriousness of the offence: Oland.

Taking into account these factors the court denied Madsen’s release pending appeal concluding that it would be contrary to the public interest. In part, this was so due to grounds of appeal which were not particularly compelling and the seriousness of the offence – as described by the court:

As a result of what happened on the night in question, Mr. Peepeetch suffered a number of fractures to his spinal area, losing all function in his lower limbs and a certain loss of strength in his arms and hands. He now needs almost constant care. The medical expert at trial testified that “it is the force of impact … which cause[d] the injury to the spinal cord” (T699). Mr. Peeepeetch will remain “essentially a paraplegic” (T691). That same expert testified that Mr. Peepeetch’s injuries were caused as “a result of [the] patient’s neck being forced up and down” (T691). [Para 11].

Madsen offers a helpful example of circumstances, albeit they seem rare, where bail pending appeal may be properly denied.

DM

Reasoned Acceptance - Reasoned Rejection

RA was charged with sexual interference, invitation to sexual touching and sexual assault against a minor. The victim was RA’s daughter. The offences occurred when she was between the ages of 3 and 5 years old. The offences involved the accused having the complainant masturbate his penis until he ejaculated.

The victim testified. RA testified as well.

RA was convicted after trial. The trial judge note that the accused “testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence”, and that he “withstood cross-examination without a blemish” [para 4]. Notwithstanding these comments, RA was convicted. The trial judge accepted the complainant’s evidence in its entirety and found the offences were proven beyond a reasonable doubt.

RA appealed. The appeal was dismissed: 2017 ONCA 714.

On appeal RA raised the following points:

First, he submits that the trial judge failed to resolve a critical inconsistency in the complainant’s evidence and failed to explain why he accepted the complainant’s evidence and rejected the appellant’s. This ground was the focus of the appellant’s submissions during oral argument. Second, the appellant submits that the trial judge failed to consider innocent explanations for the complainant’s knowledge of a penis and sexual acts in determining whether a reasonable doubt arose. [Para 5].

On the issue of the trial judge’s explanation for accepting the complainant’s evidence and rejecting the accused’s evidence, the Court of Appeal offered the following:

This was a credibility case, and at the end of the day the core of the complainant’s allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant’s evidence, and ultimately decided to accept her evidence in its entirety.

The trial judge’s analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.

Although the trial judge’s reasons are relatively brief, they are responsive to the live issues in the case and the parties’ key arguments: R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245, at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant’s evidence, but nor did he reject it simply because he accepted the complainant’s evidence.

The trial judge was entitled to reject the appellant’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence”: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case. [Emphasis added]; [paras 53-56]

These comments are not novel: see for example R v PR, 2014 ONCA 131 @para 4; R v JW, 2014 ONCA 322 @para 26 and 30. Clearly, however, it seems they need to be reiterated. As the court notes, an acquittal is not necessary simply because a trial judge does not identify “obvious problems”. A reasoned acceptance, beyond a reasonable doubt, of the victim’s evidence is sufficient.

RA is a helpful reminder of a basic but important legal principle – take heed.

DM

No Discretion to Circumvent

Do sentencing judges have the discretion to impose concurrent victim surcharges [VS]? The Ontario Court of Appeal unanimously says no. In short, the Court held that “there is no discretion in the court to circumvent this automatic imposition [of the VS] by ordering concurrent victim surcharges.” [Fedele @1]

The Ontario Court of Appeal released the decision in Fedele, 2017 ONCA 554 on the same day that it unanimously upheld the constitutionality of the surcharge: Tinker, 2017 ONCA 552. 

Fedele stole a wheel of cheese and a pack of razor blades. He plead guilty. A pre-sentence report revealed that Fedele was supported by the Ontario Disability Support Program. He was sentenced to five days in jail and 18months probation. The sentencing judge ordered that the victim surcharge of 100$ per conviction be applied concurrently.

The Crown appeal to the Superior Court was dismissed. 

The Summary Conviction Appeal court analogized the VS to a DNA order, in other words, “one order will suffice even where there are multiple convictions” [@9]

The Court disagreed and held that:

the legislative text and legislative history of s. 737 make it clear that victim surcharges are to be imposed for each and every offence and as is the case with fines, there is no judicial discretion in a court to impose victim surcharges concurrently. [@13]

First, the court noted that while

[i]t is true that s. 737 does not remove the discretion to impose victim surcharges concurrently or consecutively, this misses the point. The proper question to ask is whether such a discretion exists. In my view, it does not. [@32]

Second, the Court explained that the terms concurrent and consecutive do not apply to monetary amounts:

[c]oncurrent and consecutive are concepts that apply to periods of time. There can be concurrent sentences of incarceration or concurrent prohibitions on driving. Fines and surcharges are not punishments which are measured in time – they are measured in amounts of money. [@34]

In short, there is no discretion to circumvent the VS.  

LT

Milling around in the World of Internet Privacy

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Sean Mills was chatting online. He thought he was chatting to a young girl. He was, in fact, chatting with a police officer. The officer had created an online profile portraying himself as a 14 year old girl. Mills contacted him and then began to chat. Eventually a meeting was set up. Mills was arrested at the meeting. The police had captured the chats between Mills and the officer. The trial judge explained this process.

[6]        …  In order to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen.  Snagit is a screen shot program that captures video display and audio output.  Constable Hobbs employed the Snagit program on each of his communications with Mr. Mills. 

[7]        The “Snagit” program is a program that is available to the public and commonly used.

Mills was convicted after trial and appealed: 2017 NLCA 12. On appeal to the Newfoundland Court of Appeal the court considered (i) whether Mills had a reasonable expectation of privacy [REP] and (ii) whether there was an "interception" within the meaning of Part VI of the Criminal Code.

With respect to the REP issue, the court rejected the notion that Mills had an objectively reasonable expectation of privacy:

In this case, the analysis focuses on the third and fourth headings identified in Spencer; that is, Mr. Mills’ subjective expectation of privacy in his communications with “Leann” and whether that subjective expectation was objectively reasonable in the circumstances.  Mr. Mills was using electronic social media to communicate and share information with a person he did not know and whose identity he could not confirm.  On an objective analysis, as the sender of such communications, Mr. Mills must have known that he lost control over any expectation of confidentiality that he appears to have hoped would be exercised by the recipient of the messages.  He took a risk when he voluntarily communicated with someone he did not know, a person he was not in a position to trust.  Any subjective expectation of privacy Mr. Mills may have had was not objectively reasonable.  In the absence of a reasonable expectation of privacy, section 8 of the Charter was not engaged. [@23].

With respect to whether there was an intercept, the court held that an "intercept" requires the participation of a third party - the after-the-fact capture of the communication between two parties did not amount to an "intercept".

That language does not alter the ordinary meaning of an interception which requires the involvement of a third party.  Where there is direct communication between two people, the intended recipient cannot be characterized as having “intercepted” a communication meant for that person. 

Further, the fact, unknown to the sender, that the recipient is a police officer cannot change the nature of the communication or transform a receipt by the intended recipient into an interception.  Viewed from another perspective, if “Leann” had, in fact, been a fourteen year old girl, it could not be said that her receipt of the communications from Mr. Mills constituted an interception. [@13-14].

Mills is one in a series of recent decisions on these issues. The REP ruling is particularly helpful and an important one that helps the continuing body of law considering REP in an internet world post-Spencer. The "intercept" ruling is interesting. It is arguably a narrower interpretation of "intercept" than that advanced in Telus as it requires the direct involvement of a "third party" to constitute an intercept. 

DM

Common Privacy?

Matthew Wawrykiewicz was in a hotel room. There was a complaint. The police were called. They entered the hotel room. Found drugs. Wawrykiewicz was arrested. Later the police were able to identify another address connected to the accused – 105 The Queensway. The police began surveillance at that address. They later obtained and executed a warrant. They located more drugs.

At trial Wawrykiewicz sought to exclude the evidence found at 105 The Queensway – in part he argued that the initial entry into the hotel room was unlawful and thus the subsequent search at 105 was unlawful. The trial judge agreed, but admitted the evidence under s24(2): 2017 ONSC 569.

As part of the defence Charter motion, Wawrykiewicz argued that the police surveillance at 105 The Queensawy – which included surveilling him and Poulter (who was also found in the hotel) in common areas of that building – violated s8: see R v White, 2015 ONCA 508. The trial judge disagreed.    

Prior to White was authority for the proposition that there is little or no expectation of privacy in the common areas of an apartment building: R. v. Piasentini, [2000] O.J. No. 3319 (Sup.Ct.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.).  As Wein J. pointed out in Piasentini, a contextual analysis is required that requires applying the factors set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128.

The court then reviewed rulings in R v Barton, 2016 ONSC 8003 and R v Brewster, 2016 ONSC 4133 noting and adopting, inter alia, the following factors set out in that latter ruling:

• The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;
• There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;
• There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560 (CanLII);
• There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings.  That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, supra;
• Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.

Turning to the facts the court noted:

1. The police conducted surveillance in the elevator, the lobby and on one of the floors
2. Wawrykiewicz was observed exiting 1905 and using a key to lock the door
3. Wawrykiewicz was observed using a key fob to gain entry into the building
4. There was no evidence regarding the actual connection he had to this residence
5. Wawrykiewicz had bail conditions that required him to reside at a different address

Based on these facts the judge concluded:

I accept that a person may have more than one residence, but in the absence of any further evidence I cannot conclude that Mr. Wawrykiewicz’s expectation of privacy at 105 The Queensway was high.  I therefore find that he had even less of an expectation of privacy in the common areas.

I also cannot conclude that the police engaged in the type of intrusive behaviour that they did White.  They did not cock an ear to a door in order to eavesdrop on a private conversation.  They did not try to determine what Mr. Wawrykiewicz and Ms. Poulter were up to in Unit 1905.  Their sole purpose was to determine whether there was a connection between Mr. Wawrykiewicz and that unit.  As noted by Code J., there is no expectation of privacy in the unit number in a multi-unit building.  I therefore find that there was no stand-alone violation of s. 8 of the Charter in respect of Unit 1905 of The Queensway. @55-56

The Ontario Court of Appeal’s ruling in White has been the subject of much discussion since its release. Putting aside the conduct of the police in that case, the concept of creating an expectation of privacy in common areas is somewhat controversial, or at least subject to much discussion regarding its scope. Wawrykiewicz is a helpful ruling clarify this issue.

DM

Privacy limitations defined

Nour Marakah sent some text messages to Andrew Winchester. They were discussing the purchase and sale of illegal firearms. The police had begun an investigation into several persons who had legally purchased 45 firearms over a six month period. Ultimately that investigation led to Winchester. Eventually grounds were formed, Winchester was arrested and two phones were seized from him. Both were later searched. Text messages from Marakah were found on Winchester’s phone which demonstrated that he was involved in firearm trafficking.

At trial Marakah sought to challenge the search of Winchester’s phone. The trial judge found that Marakah had no standing:

[102] … Once the message reaches its intended recipient … it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

Marakah was convicted. He appealed: 2016 ONCA 542. The appeal was heard together with R v Jones, 2016 ONCA 543 and R v Smith, 2016 ONCA 544. 

In addressing the appeal, the court began with basic principles. First, s8 protects people, not places. Second, the right to challenge a search depends upon the accused “establishing that his personal privacy interests are engaged” – standing @27; R v Edwards, [1996] 1 SCR 128 @34-35. Third, not all privacy interests are protected, only a reasonable expectation of privacy is @28.

With respect to standing, the court considered the impact of R v Telus Communication Co, 2013 SCC 16. The court rejected Marakah’s position that Telus supported was determinative of the standing issue. First, in Telus the Abella J (for the majority) expressly declined to decide whether seizure of historical text messages could be done by way of warrant. Second, Telus did not address standing. In short, the assessment of standing must be determined by the “totality of the circumstances” test, Telus is not determinative @39-43.

Next the court rejected the notion that the Edwards framework was insufficient in the circumstances.

In my view, the appellant’s submission that utilizing the Edwards framework does not adequately engage normative considerations relevant to informational privacy claims is not borne out in the jurisprudence. In particular, the submission misses a fundamental point articulated in virtually all of the cases. The particular facts of each case, and not necessarily the category of privacy right claimed (as they can often overlap), will dictate which contextual factors are most and least relevant to the “totality of the circumstances” analysis. @55

Finally, the court considered whether the trial judge erred in finding that the lack of control and access were significant factors weighing against a finding of a reasonable expectation of privacy. The majority of the Court of Appeal agreed with the trial judge:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.

This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.

It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.

In this case, the application judge properly focused on the factors of control, access and lack of confidentiality. @63-66.

In the end the majority agreed with the trial judge, Marakah had no standing to raise any constitutional complaint about the search of Winchester’s cellphone. Once sent, there was no objectively reasonable expectation of privacy in text messages received by Winchester.

Marakah, along with Jones, has been appealed to the Supreme Court and is on reserve. Soon we will learn if the Supreme Court has a different view of what is objectively reasonable!

DM

ASAP: Constitutional or Evidentiary Requirement, it depends

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Shady Mawad was convicted of over 80. Mawad had argued that the police, in making a demand for his breath and taking the samples violated section 8. The trial judge found that there was a section 8 violation in relation to the making of the demand but admitted the evidence under section 24(2) and convicted Mawad who appealed. That appeal was dismissed: R v Mawad, 2016 ONSC 7589.

Shady Mawad was driving his car. Someone thought he was impaired. They called the police. Officer Guthrie received a radio call at 4:34 am. Guthrie located Mawad at 4:41. After speaking with Mawad and forming a reasonable suspicion, Guthrie made a ASD demand at 4:47 am Mawad produced a fail at 4:53 am. At 4:57 Guthrie arrested Mawad and read his rights to counsel (a minute later) – leaving the scene at 5:29. The arresting officer failed to make a breath demand. At 6:20 the breath technician took custody of Mawad and made the breath demand at 6:26.

Given that the first sample was obtained beyond two hours of the time of driving, at trial the Crown called a forensic toxicologist to “read back” the samples and provide direct evidence regarding Mawad’s BAC at the time of the offence.

Mawad argued that his s8 rights were violated – by the failure to make the demand as soon as practicable and by the failure to take the samples as soon as practicable. The trial judge concluded that the breath demand was not made by the officer as soon as practicable but admitted the evidence under s24(2). The trial judge did not find that the failure to obtain the samples as soon as practicable violated s8. Mawad was convicted. He appealed.

On appeal Mawad argued, inter alia, that the trial judge erred in not finding that the delay in taking the samples violated s8.

With respect to the taking of the samples, Mawad asserted that the failure to take the samples as soon as practicable amounted to a violation of s8. The summary conviction appeal court rejected that notion. The requirement that samples be taken as soon as practicable in section 258(1)(c) is an evidentiary requirement that permits the Crown to take advantage of the presumption of identity. Where the samples are not taken as soon as practicable the Crown loses that presumption. The results are still admissible however. The summary conviction appeal court, citing R v Deruelle, [1992] 2 SCR 663 and R v Newton, 2013 ONSC 644 in support, held:

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights. [@26]

Mawad is a helpful decision that clarifies the impact and scope of provisions that are sometimes misconstrued. In short, three points summarize the principles elucidated by this decision. First, s254(3) requires that an officer makes a breath demand as soon as practicable upon forming grounds. This provision is the statutory authority that permits the obtainment of breath samples. Failure to comply with that requirement undermines that authority and thus has constitutional implications – a section 8 violation.

Second, s258(1)(c) requires that samples be taken as soon as practicable. This provision is merely an evidentiary assist, however. Failure to comply with this requirement has no constitutional implications – merely evidentiary ones (the loss of the presumption of identity).

Third, the requirement that samples be “provide[d]” as soon as practicable in s254(3) is not one that is imposed on the state. It follows that the failure to obtain samples as soon as practicable has no constitutional implications.

DM

Avoiding an otiose and absurd result

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Carson Bingley was driving his car, poorly. His driving was erratic. He cut off one driver and crossed over the centre line. He nearly collided with another car. Bingley pulled into the parking lot of an apartment complexand struck another car. The police were called.

Officer Tennant responded. She spoke to Bingley. She noted several things that led her to believe that Bingley was impaired: his zipper was undone; he had difficulty doing it up; he stumbled; he was swaying and uncoordinated; his eyes were glossy and bloodshot; his speech was slurred; he was having trouble focusing. While officer Tennant believed Bingley was impaired, there was no odour of alcohol. An ASD sample revealed a BAC of 16. Officer Jellinek – who is trained and qualified as a “drug recognition expert” (thereby classifying him as an “evaluating officer within the meaning of section 254) – arrived on scene. Standard Field Sobriety Tests were conducted. Bingley failed. Bingley was arrested. Back at the station officer Jellinek conducted an evaluation (as set out in section 3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196). Bingley failed.

A urine sample was obtained pursuant to section 254(3.4). It was analyzed. Carboxy THC (an inactive by-product of THC – the psychoactive component of cannabis), cocaine and Alprazolam were detected in the urine sample.

At trial one of the issues raised by counsel for Bingley, Trevor Brown, was whether officer Jellinek could provide an “opinion” on the issue of whether Bingley was impaired by drug absent a Mohan voir dire. The Crown argued that the statutory provisions permitted such an opinion to be given without the need for such a voir dire. The trial judge disagreed. Bingley was acquitted. The Crown appealed. The summary conviction appeal court judge, Justice McLean, allowed the Crown appeal. Bingley appealed.

A unanimous Court of Appeal dismissed the appeal: 2015 ONCA 439. Bingley appealed to the Supreme Court – his appeal was dismissed: 2017 SCC 12. The majority offered the following points in dismissing the appeal.

First, the language of s254(3.1), in particular, the phrase “to determine”, does not support the conclusion that a DRE is automatically entitled to provide an opinion in court. Unfortunately, the majority did not discuss this point in any detail – there was no statutory interpretation undertaken, an approach advanced by the Crown and accepted at the Court of Appeal.

Second, the majority noted that the concession by Bingley that the evidence of the DRE is logically relevant, necessary and not subject to any other exclusionary rule (3 of the Mohan criteria) was “appropriate” [para 18].

Third, the majority noted that the only issue that remained was whether he was properly qualified. With respect to that issue, the officer, a “DRE” is “literally” a “drug recognition expert” who is certified as such for the purposes of the scheme. This expert receives “special training in how to administer the 12-step drug recognition evaluation and in what inferences may be drawn from the factual data he or she notes”.  It follows that a DRE is a properly qualified expert who “undoubtedly possess[es] expertise on determining drug impairment that is outside the experience and knowledge of the trier of fact” [para 21].

To put it another way, the only purpose of a voir dire in this case would be to determine whether Constable Jellinek has expertise over and above an ordinary person. Normally, the judge determines this on evidence adduced at the voir dire. But s. 254(3.1) and the legislative and regulatory scheme that accompanies it conclusively answer the question of expertise. The DRE is established by Parliament to possess special expertise outside the experience and knowledge of the trier of fact. He is thus an expert for the purpose of applying the 12-step evaluation and determining whether that evaluation indicates drug impairment for the purposes of s. 254(3.1). His expertise has been conclusively and irrebuttably established by Parliament [para 27].

Fourth, the majority rejected the argument advanced by Bingley that the scheme was for investigative purposes only and did not permit the DRE to provide an opinion in court: “While a DRE’s evaluation certainly has an investigative purpose, their application of the 12-step drug recognition evaluation and determination of impairment is relevant evidence and can assist the trier of fact” [para 21].

Fifth, the majority noted that since the expertise of the DRE is the implementation and interpretation of the 12-step test, the DRE need not be trained in the underlying science [para 22]. More to the point, perhaps, the majority noted that the 12-step evaluation secures its reliability from the statutory framework itself.  

Sixth, any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself [para 25].

Bingley is an important decision. Drug impaired driving is a dangerous and too frequent occurrence in Canada. The legislative scheme created by Parliament and now interpreted by the Supreme Court is logical, principled and effective. As the majority noted, the schemed (and concessions by Bingley) make clear that the common law requirements for admissibility are made out and thus, the DRE’s opinion should be admitted without the need for such a voir dire. “To so require would be otiose, if not absurd, not to mention a waste of judicial resources” [para 28]. 

DM